CON LAW OUTLINE PUSHAW v2

CON LAW OUTLINE – INDIVIDUAL RIGHTS PUSHAW (I) STANDARDS OF JUDICIAL REVIEW (i.e. burdens of proof) a. Strict Scrutiny (Burden on Gov’t to prove or it Loses) i. Substantially related to a compelling state interest and narrowly tailored to achieve such interest. ii. Inherently Suspect Classes Get Strict Scrutiny: 1. Race 2. National Origin 3. Non-Economic Social Regulation a. Religion (as long as non-economic) b. Intermediate Scrutiny (Could go either way) i. Must substantially relate to an important state objective 1. Important as opposed to compelling. ii. Quasi-Suspect Classes get Intermediate Scrutiny 1. Gender c. Rational Basis Plus (not formally recognized) i. Under Reed v. Reed. Court struck down probate law that put men first. Purported to apply rational basis, but looked stricter. d. Rational Basis (Burden on Plaintiff or Gov’t Wins) i. If congress could have had a rational basis that there was, is or will be a reasonable relation to a legitimate state objective. 1. Laws may be wasteful, that is not up to courts to decide 2. Burden of proof on challenger. (II) CONSTITUTION a. Article 1: Contracts Clause i. Fletcher v. Peck – Right to Contract (1810) 1. Facts: Land Sale Scam, 2. Rule: Marshall: Pre-14th Amendment: Constitution says a state cannot pass a law impairing the obligations of contract, whether executory or performed. a. Does not exempt state governments so presumption they are included. b. Constitution, unless limiting language used, shall apply as broadly as possible. c. Johnson: Used Natural law principles. ii. Gelpcke v. Dubueque (1864) 1. Rule: If a K, when made is valid per the laws of a state, its validity and obligation cannot be impaired by any subsequent action of legislation or change in judicial construction of the law. iii. Lochner v. NY (1905) 1. Facts: Regulation of wage and hour in baking industry. 2. Rule: (Holmes) State police powers supercede individual rights to contract. iv. Muller v. Oregon (1908) 1. Facts: Women made to work long hours in factories 2. Rule: Protected classes may have their contract rights limited to ensure equality at work. v. Coppage v. Kansas (1915) 1. Face: Contracts forbidding joining a union. 2. Rule: Cannot contract to limit a persons substantive due process rights. (III) 1st Amendment a. Free Exercise of Religion i. Level of Review: Strict Scrutiny ii. Rule: Neutral state laws of general applicability are valid. 1. Targeting particular groups is forbidden. (Oregon v. Smith) b. Establishment Clause i. (actually the “No-Establishment” Clause) ii. 14th Amendment incorporates against the states. iii. Modern Rule: i. Secular Purpose ii. Primary Effect must neither advance nor inhibit religion iii. Cannot foster an excessive entanglement with religion. iv. Therefore, governments can make exemptions to accommodate religious beliefs without establishing religion. 2. Example: Government Provided Aid a. Money to church run schools iv. Judicial History: 1. Everson (1947) a. Wall of separation. Did not work. 2. Lemon (1971) a. Test: i. Secular Purpose ii. Primary Effect must neither advance nor inhibit religion iii. Cannot foster an excessive entanglement with religion. b. Test is flexible and has been applied to get diametrically opposed results depending on the composition of the supreme court 3. Mueller (1983) 4. Agnostini (1997) c. Freedom of Expression i. Defamatory Speech 1. Rule: Prior Restraints on Expression Presumptively Invalid: a. Defamation and Public Figures: Require Actual Malice: Intentional falsehood or reckless disregard. 2. Valid Prior Restraints: a. Compelling State Interest such as: b. Clear and Present Danger (Schenk 1919) i. Words of advocacy that intend to ii. Direct to imminent lawless action or injury to the state (Whitney 1925), with a iii. Likelihood of Success c. High Gravity of Evil (Dennis 1951) i. Discounted by its improbability d. National Security (Gitlow 1925) i. Courts deferential to executive branch. ii. Government has right to preserve itself. iii. May be prohibited under police power to preserve welfare of the people. e. Conspiracy to Commit a Crime i. No free speech right to publish secret government information. 1. Free speech has to be balanced against compelling government interests such as national security. 2. Can‟t publish identities of spies. f. Gag Orders to keep a clean jury pool. ii. Vague and Over Broad Legislative Speech 1. Vagueness: a. When law contemplated outside of specific case in litigation, is it sufficiently clear that citizens know what‟s being made a crime? b. If no, strike down. 2. Over Breadth a. Ex. City law banning nude live performances with intend to ban hard core porn shows. i. Also bans nude hamlet, may be over broad. 3. iii. Legislative & Judicial History: 1. Sedition Act of 1798 a. John Adams hated Democratic Republicans (Jefferson) so made it a crime to criticize the government. b. “intent to defame” the government. c. Presently a clear cut violation of the 1st Amendment. 2. Kentucky and Virginia Resolutions a. State laws that Declared the Sedition Act violated the 1st Amend. b. Done by Jefferson and Madison. Laid framework for later interpretations of the 1st. 3. Gitlow (1925) a. Clear and Present Danger to limit speech. (IV) 3rd Amendment a. Federal Courts have original jurisdiction in all cases regarding the Constitution. (Marbury v. Madison) i. Ambassadors ii. Two or more states. 1. Constitutionality of state laws iii. Federal Question (arising under constitution) b. Political Questions will be left to the legislature. (V) 4th Amendment a. Privileges and Immunities Clause i. Modern Law: Individual Rights Reciprocity: Citizens of State A are entitled to the same treatment of citizens of State B when in State B. 1. Applies only to fundamental rights: a. Security of your own person b. Right to own and transfer property c. Right to participate in court activities. 2. Exceptions: a. Can forbid a non-state corporation from doing business. i. A corporation is not a citizen (although it is a person). ii. Incorporation is a special privilege that is not required to be extended to foreign corps. b. State is not required to extend rights that apply exclusively to its residents. ii. Judicial History: 1. Corfield (1823) a. Facts: Statute forbidding anyone not an actual resident of the state to gather clams from state‟s waters sustained. b. Rule: P&I is confined to those P&I that are fundamental i. Fundamental = belong to all free governments and which have at all times been enjoyed by citizens of the several states. 1. Right to Acquire property 2. Pursue happiness 3. Safety 2. Dred Scott (1857) Blacks not Citizens a. Facts: Miss. Compromise unconstitutional b/c Congress did not have the power to outlaw slavery in the territories. b. Rule: No former slave or descendants could ever be a CITIZEN. Therefore did not have privileges and immunities of a citizen. 3. Crandall (1868) a. Facts: Court struck own NV statute imposing tax on every person leaving state via commercial transit. b. Rule: Every Citizen has right to pass between every part of US without interruption. 4. Paul (1869) a. Rule: i. P&I does not give a citizen rights against their own state. ii. It entitles a citizen of one state who is present in another state to same treatment by that state as it accords its own citizens. 1. Rights of Ingress & Egress 2. Acquisition and Enjoyment of Property iii. (VI) 5th Amendment a. Due Process Clause Modern Law: 1. TEXT: No person shall be deprived of life, liberty, or property, without due process of law. 2. RULE: Provides Procedural and Substantive Due Process Rights identical to the 14h Amendment against the Federal Government. 3. APPLIES TO: All persons = US & non-US citizens and corporations domestically. a. EXCEPT: i. Non-Citizen Criminals (Courts have yet to determine if terrorism is a crime or a war). ii. Non-US Citizens Abroad (Covered only by Geneva convention). Judicial History: ii. Bolling v. Sharpe (1954) 5th incorps 14th against Feds. 1. Facts: School Segregation in Washington DC. 2. Rule: a. 5th Due Process clause incorporates the 14th equal protections clause against the Fed government. b. Discrimination by Feds is always a 5th amendment problem. Never a 14th problem as the 14th only applies to the states. 3. Based on analysis of the framers of 5th intent. 4. It has also brought in the intermediate scrutiny standard. (VII) (VIII) 13th Amendment a. -The End of Slavery 14th Amendment a. Privileges or Immunities Modern Law: i. TEXT: NO State shall abridge the PRIVILIGES or IMMUNITIES of US citizens. ii. RULE: A state can‟t treat its own citizens differently when it comes to fundamental civil rights. Judicial History: iii. Caroline Products: (1938) Economic Regulations: Rational Basis. 1. Except if: a. violate some individual non-economic constitutional right. b. Such as minority c. Or where democratic process has been broken down. iv. Baker v. Carr: 1. 1 Person 1 vote. We are going to fix the democratic process. 2. Extends equal protection to political rights. v. Slaughterhouse Cases: (1873) 1. Facts: Slaughterhouse regulation 2. Rule: States can abridge privileges or immunities of their own citizens. a. The only thing states are prohibited from doing is with regard to other states and the federal government. 3. Effect: Essentially reads the privileges or immunities clause out of the constitution. This was ok because of the equal protections clause a. Except for the Plessy period. 4. b. Due Process i. TEXT: No State shall deprive any person of life, liberty, or property, without due process of law.. 1. Applies to States Not to Feds. ii. Procedural 1. Modern Law: a. Person = US Citizen home or abroad i. For non US citizens domiciled in US see 5th Amend. b. Deprive = without Notice and Opportunity to be heard (Goldberg) before an impartial decision maker (Hamdi). i. Balancing Test (Eldgridge) 1. How much Notice and Opportunity to be heard is required. 2. Cost Benefit Analysis. 3. Full fledged jury trial not required. ii. Impartial Decision Maker: Has yet to be defined. 2. Judicial History: a. Dread Scott (1857) Blacks not People i. “Persons” do not mean blacks. b. Ex Parte Merryman (1861) i. Rule: Writ of Habeus Corpus can only be suspended by Congress. c. Civil Rights Act of 1866 i. Rule: Overturned Dread Scott? d. Ex Parte Milligan (1866) Military Commissions i. Rule: Military Commissions struck down in times of peace. e. Strauder (1880) Blacks entitled to jury service i. Facts: Black convicted of homicide by jury pool that forbade blacks from service. ii. Rule: Violates Due Process. States cannot DIRECTLY abridge fundamental liberty rights. iii. Effect: Still could do so indirectly by putting land or literacy requirements on service. f. City of Boerne: (1997) i. Rule: Congress can only make preventative laws to enforce the constitution and the courts interpretation. g. Hamdan (2005) Military Commissions i. Hamdan, bodyguard to Saddam, tried in front of military commission. ii. Rule: Military commissions must be authorized by Congress. iii. Substantive: 1. Substantive Due Process = Life, Liberty and Property. a. Liberty = Freedom of i. Contract ii. Privacy iii. Marriage b. Affirmatively limited by state‟s Police Powers. PROPERTY Modern Law: 1. Eminent Domain with Just Compensation. 2. Rational Basis Review Judicial History: 2. Charles River Bridge (1837) a. Facts: Allowed public bridge to be built next to private bridge when private bridge had contract with state. b. Rule: i. Taney balances public needs and individual rights to property. ii. If a contract does not say exclusive it will be read as non-exclusive. iii. Construe Contracts Narrowly. 3. West River Bridge (1948) a. Rule: Government has implied power of eminent domain for just compensation. LIBERTY Modern Law: Rule: 4. Fundamental Liberty Interests are Protected a. Fundamental = Does the interest rise to the level of our history and traditions? If so, laws are reviewed under strict scrutiny. If not, b. Non-Fundamental = reviewed under rational basis. 5. Non-Fundamental Liberty Interests: Rational Basis. a. Right to Die: Not hallowed by history and traditions because every state has made a crime as well as UK. b. Homosexuality: 6. Fundamental Liberty Interests: Strict Scrutiny. a. Contract b. Marriage i. Contraception ii. Abortion iii. Sodomy iv. Liberty Judicial History LIBERTY OF LIFE: 1. Lawrence v. Texas Rule: Homosexuality a. Homosexual sodomy is not fundamental because not hallowed in our nations history because it was a crime. We also don‟t want to confuse doctors with anything put one direction. This looks like an actual rational basis plus something. 2. Griswald: Right to Marry a. Right to Contraception (under right to engage in sex during marriage), became b. Right to have an Abortion i. Stemberg v. Carhard 1. Partial Birth Abortion prohibited. Have child outside wound and crush skull, or chop up in womb. 2. Nebraska does not make a health of the mother exception. 3. Rule is ok Pre-Viability. Partial birth abortion not Ok. ii. Gonzalas Case 1. Life threatening to give birth. 2. Fact found that a partial birth abortion is never healthy for the mother. 3. Court made an exception to protect mothers life when in danger post viability. 4. Under separation of powers, will defer to congress. iii. Casey 1. State or Local regulation that creates an undue burden on the right shall be struck down 2. Viability is the line. Statute can regulate up to and including prohibiting abortion. 3. Must except the life of the mother. 4. If wants to regulate prior to viability, test is: a. Does the law cause an undue burden? LIBERTY OF CONTRACT: Modern Law: c. Economic Regulations Subject to Rational Basis Review. d. Non-Economic Regulations: Subject to Heightened Scrutiny. Judicial History: 3. Fletcher v. Peck (1810) a. Facts: Land scandal law reverses state grants for brides. b. Rule: Contracts clause applies to states and individuals. Cannot unilaterally rescind a valid contract. 4. Gelpcke (1864) Sets up Right of Contract a. Facts: State wants to reverse a Municipal Bond b. Rule: A law cannot retroactively impair the rights of a valid contract entered into before the law. 5. Allgeyer (1897) Precursor to Substantive DP a. Facts: b. Rule: DP clause prohibits state violation of Liberty = free from incarceration & enjoyment of personal faculties & live & work where want & enter into all necessary and proper contracts. 6. Holden (1898) Limits DP by Police Power a. Facts: Upheld Utah statute limiting employment to 8 hours per day. b. Rule: DP Liberty right to Contract affirmatively limited by state‟s Police Powers (Health / Welfare). 7. Jacobson (1905) Ties Police means to the end a. Rule: Means of Law must have substantial relation to the End of the law. 8. Lochner (1905) Expanded DP over PP in Economic areas a. Facts: Bakery work hour limitation had no health & welfare reason so was purely economic and therefore interference with liberty of contract. b. Rule: State police power does not extend to purely economic ends. Liberty Right to Contract trumps state economic regulation. 9. Coppage (1915) Limits DP a. Facts: State law prohibited employment contracts forbidding joining labor unions. b. Rule: Public Welfare is the only reason for which a state may limit liberty of contract. 10. Blaisdell (1934) Sets up a balancing test a. Facts: Minnesota mortgage foreclosure moratorium b. Rule: Balancing Test – no unreasonable law impairing contracts. i. Public Interest v. DP Liberty Right 11. West Coast Hotel (1937) PP extends to economic areas a. Facts: Upheld Minimum wages for women. b. Rule: State Police Powers overcome DP Liberty of Contract in economic & non-economic areas. 12. Caroline Products (1938) Rat. Basis / Height Scrutiny a. Facts: DP challenge to Filled Mil Act (econ reg). b. Rule: Established Rational Basis Test and applied it to Economic Regulations. Established Heightened Scrutiny on Non-Economic Regulations. 13. Lee Optical (1955) Modern Contract Law a. Facts: Upheld state law requiring license of eye doctors on basis of nominal “public health” (really economic). b. Rule: If legislature might have had a Rational Basis between the means (law) and the end (the objective of the law) then economic regulation OK. c. Equal Protections MODERN LAW: i. Two Prong: 1. Was there intent to discriminate? a. Statistics of disparate impact. b. Government designed the law to have a racially disparate impact. 2. If no intent to discriminate, then look no further (Washington case). ii. If intent, then go to level of review: iii. Strict Scrutiny: Race & Ethnicity. iv. Intermediate Scrutiny: Gender (I+) v. Rational Basis: Age GENDER MODERN LAW: Intermediate Scrutiny Judicial History: vi. Shanks (1830) Women have no rights 1. Women have no Property & COntract rights under rules of Coverture vii. Bradwell (1873) EP clause doesn’t apply to Women. 1. Facts: Woman denied license to practice law on basis of gender. 2. Rule: EP clause did not apply to women. Gives only civil rights, no political rights. viii. Reed (1971) EP clause applies to Women 1. Facts: ID law that preferred men over women as estate administrators was arbitrary. 2. Rule: Rational Basis Plus is applies to Gender as it is now a protected class. ix. Boren (1976) Intermediate Scrutiny for Gender x. VMI (1996) 1. Facts: Women not allowed into Virginia Military Institute 2. Rule: Gender discrimination gets intermediate plus scrutiny. “Exceedingly persuasive” sounds like compelling state interest and strict scrutiny, but there is no intermediate plus. xi. Recent Case (VMI): 1. If gets money from government, can choose where to send to school, religious or not. 2. When governments want to provide social services, and people want to choose where to get it, it is fine. a. Studies show same sex schools people perform better because not concerned about what looking like. b. NY has pilot program in which people can volunteer to go to these schools. xii. A State might have a compelling interest in having a same sex school, so court doesn‟t want to rule out that possibility. 1. Compelling i. Studies show same sex schools people perform better because not concerned about what looking like. ii. NY has pilot program in which people can volunteer to go to these schools. RACE Modern Law: 1. Strict Scrutiny if intent to discriminate, good or bad. Judicial History: xiii. Groves (1841) Slaves Exclusively State Issue 1. Rule: Slaves are not commerce and thus commerce clause not invoked so only state issue. xiv. The Civil Rights Cases (1883) 14th Not apply to Individual Acts 1. Rule: 14th DP / EP / P&I does not apply to individual actors. xv. Plessy (1896) Separate but Equal (Public & Private) 1. Facts: Railroad separate but equal accommodations. 2. Rule: Separate but Equal a valid exercise of state police power to preserve order. xvi. Korematsu (1944) Strict Scrutiny for Race 1. Rule: Race and national origin are a suspect class, therefore subject to strict scrutiny. xvii. Brown v Board (1954) Separate is not Equal 1. Facts: Intent of the 14th was to extend civil rights to blacks and schooling is a fundamental right. 2. Rule: Segregation of Schools violates Equal Protections xviii. Griggs: (1971) Disparate Impact 1. Rule: An employee only needs to show a disparate impact to make its prima facie case of discrimination. xix. Washington v. Davis: (1976) Strict Scrutiny 1. Rule: When a law is neutral on its face it does not auto trigger strict scrutiny. a. Plaintiff must show governmental intent xx. Regents of Univ CA: (1978) No Affirmative Action 1. Rule: Can‟t have a racial quota system. xxi. Missouri v. Jenkins (1995) xxii. Rule: The remedy under EP clause must be fashioned to the nation of the violation. xxiii. Grutter (2003) Individualized Consideration Compelling 1. Rule: Diversity of student body is a compelling state interest. (IX) 15th Amendment a. Voting Rights for all races. OLD OUTLINE (X) TIMELINE OF MAJOR COURTS a. b. c. d. Marshall Court Taney Court Reconstruction to the New Deal Modern Court (XI) JURISDICTION OF FEDERAL COURTS a. _ Article 3: Orig. juris. In all cases regarding Constitution i. Marburry v. Madison (Marshall Court): 1. Supreme Court has Appellate Jurisdiction, except a. Art. 3 trial Jurisdiction in cases involving: i. ambassadors ii. Two or more states. 1. Constitutionality of state laws iii. Federal Question (arising under constitution) 2. Political Questions may not be judicially reviewed. a. Where a law gives someone a specific duty, anyone who has their individual rights breached by a failure of such duty may resort to judicial review. b. Marbury has a right to the commission and Madison‟s refusal to deliver it was a violation of that right. 3. Judicial Branch can review acts of Executive or Legislative Branch where a right has been violated. ii. Writs Available to Fed. Courts 1. Writ of Habeas Corpus a. Writ alleging that an individual has been unlawfully detained and ordering the official having custody of the individual to bring the person before a court for the purpose of determining whether the imprisonment was legal. 2. Writ of Mandamus a. Order of Specific Performance b. To other courts, or c. Persons in office under US authority. 3. Writ of Certiorari a. Appellate Court agrees to take a case. 4. Writ of Prohibition a. An order to a lower court ordering that court not to exercise jurisdiction. b. _ Article 6: Federal law is supreme over state law if i. State law contradictory, or ii. Feds intend to preempt state laws in the area. c. _ Bill of Rights, Amend 1-10: Apply to Feds only. Not to States. Art. 1 says Congress shall make no law.. d. _ 14th Amendment: Sup. Ct. Interprets makes the bill of rights apply to the states. (XII) _ FREEDOM OF EXPRESSION & SPEECH a. Free Speech i. Defamatory Speech ii. Prior Restraints Presumptively Invalid: 1st Amend designed to stop government from enacting prior restraints on expression (i.e. censorship). iii. Rational: Don‟t stop the speech, but if defamatory then can proceed against the speaker. This puts a check on governmental power. 1. Defamation and Public Figures: Require Actual Malice. a. Intentional falsehood or reckless disregard. iv. Valid Prior Restraints: 1. Clear and Present Danger 2. Gag Orders to keep a clean jury pool. v. Content Based Speech vi. Symbolic Speech vii. Legislative & Judicial History: 1. Sedition Act of 1798 a. John Adams hated Democratic Republicans (Jefferson) so made it a crime to criticize the government. b. “intent to defame” the government. c. Presently a clear cut violation of the 1st Amendment. 2. Kentucky and Virginia Resolutions a. State laws that Declared the Sedition Act violated the 1st Amend. b. Done by Jefferson and Madison. Laid framework for later interpretations of the 1st. b. Scrutinized Speech i. Radical Political Speech (Debs v. US) 1. Can‟t be punished or prohibited unless: a. Clear and Present Danger i. Words of advocacy that intend to ii. Direct to imminent lawless action, with a iii. Likelihood of Success 2. Non-Party to a Case cannot be punished for statements made outside the court unless presents a clear and present danger to administering justice – which ahs never been found. i. What happens when a person or media outlet gets information not so sensitive and the executive branch asserts national security issues. 1. Court will apply a different standard of review in a time of war. 2. Court will be deferential to the executive or legislative branch (look to Lincoln in the Prize cases). 3. ii. Vague and Over Broad Legislative Speech 1. Use only as an alternative 2. Vagueness: a. When law contemplated outside of specific case in litigation, is it sufficiently clear that citizens know what‟s being made a crime? b. If no, strike down. 3. Over Breadth a. Ex. City law banning nude live performances with intend to ban hard core porn shows. i. Also bans nude hamlet, may be over broad. iii. Sexually Explicit Speech c. Prohibited Speech i. Threatening the President ii. Advocating violent overthrow of the government (Gitlow 1925) 1. Government has right to preserve itself. 2. May be prohibited under police power to preserve welfare of the people. iii. Conspiracy to Commit a Crime 1. No free speech right to publish secret government information. a. Free speech has to be balanced against compelling government interests such as national security. b. Can‟t publish identities of spies. 2. iv. Perjury (XIII) INDIVIDUAL PROPERTY RIGHTS a. Marshall Court: b. Fletcher v. Peck – Right to Contract (1810) i. Facts: A bribed Legislature allows cheap sale of 35M acres of land. ii. Issue: Can a State, having passed a law which is in its nature a contract, later divest those absolute rights that have vested under the contract by repealing the law? iii. Hold: No. A land grand is an executed contract and cannot be rescinded unless violated the constitution. iv. Rule: 1. Marshall: Pre-14th Amendment: Article 1 § 10 Contracts Clause in Constitution says a state cannot pass a law impairing the obligations of contract, whether executory or performed. a. Does not exempt state governments so presumption they are included. b. Constitution, unless limiting language used, shall apply as broadly as possible. 2. Johnson: Used Natural law principles. c. Taney Court i. Charles River Bridge v. Warren Bridge (1837) 1. Rule: A public entity cannot repeal their side of a contract (in this case for exclusive use).. ii. Gelpcke v. Dubueque 1. Rule: If a K, when made is valid per the laws of a state, its validity and obligation cannot be impaired by any subsequent action of legislation or change in judicial construction of the law. (XIV) _ PRIVILEGES AND IMMUNITIES OF STATE CITIZENSHIP a. Article IV § 2 i. INDIVIDUAL RIGHTS RECIPROCITY: Citizens of State A are entitled to the same treatment of citizens of State B when in State B. 1. Applies only to fundamental rights in these categories: a. Security of your own person b. Right to own and transfer property c. Right to participate in court activities. 2. Exceptions: a. Can forbid a non-state corporation from doing business. i. A corporation is not a citizen (although it is a person). ii. Incorporation is a special privilege that is not required to be extended to foreign corps. b. State is not required to extend rights that apply exclusively to its residents. ii. Interstate Mobility 1. Crandall v. Nevada a. All citizens of the U.S. have the right to freely pass and repass through every part of the country. (XV) INDIVIDUAL RIGHTS IN TIME OF WAR a. President is the Commander in Chief i. What the president gets away with depends on: 1. Strength of the president 2. 3. 4. 5. The Magnitude of the military crisis President‟s relationship to Congress The Strength and Calculus of the Supreme Court The Constitutional Rights that are at Stake b. Freedom from Torture c. Habeas Corpus i. Article I § 9 authorizes suspension, by Congress, to protect the public safety. (does not expressly say congress) ii. Merryman Case (Lincoln era) 1. _ Taney asserted that Lincoln‟s detention of Merryman was illegal on two counts: a. Constitution does not authorize President to suspend habeas. b. A military officer has no right to arrest a person not subject to the rules of war, except in and of judicial authority. 2. Lincoln ignored Taney and said president may ignore provisions of the constitution to uphold the constitution as a hole. Can‟t expect that the framers expected the president to wait until congress was assembled before reacting to an emergency. iii. Hamdi v. Bush iv. Rasool v. Bush v. Hamdan v. Bush (XVI) _ GENDER EQUALITY a. _ WOMEN’S CITIZENSHIP i. Original thought was that the man represented the woman as part of the household. (XVII) RACE EQUALITY SLAVERY a. Marshall Court: i. Groves v. Slaughter (1841) 1. Holding (incorrect) State Constitution was not self executing, required passing activating legislation. 2. Concurrence (Taney) – Slavery is a states rights issue. 3. Concurrence (Baldwin) – Issue of definition of property. If slave property, and cross between states then Congress can regulate. ii. Prigg v. Pennsylvania (1842) 1. Issue: Does Congress have exclusive power to legislate regarding a slave owner‟s right to reclaim a slave (who runs to a non-slave state)? 2. Rule: a. Fugitive Slave Act provided for a slave owner to prove ownership court of slaves current jurisdiction. b. Con. Art. 4 § 2 gave slaveholders absolute rights to slaves as property. c. State and Federal Power are Concurrent unless expressly stated otherwise and here it is a national matter to be uniformly regulated so states preempted. 3. Hold: State Courts precluded from becoming involved in slave recapture. b. Taney Court i. Dread Scott v. Sandford (1857) (Wrong) 1. Issue: Can a former slave be a citizen so as to qualify to bring an action in federal court? Majority: (Taney) 2. Hold (Taney): That the original intent of the constitution was that slaves and descendents of slaves where not considered „persons‟ in the eyes of the constitution so could not maintain a cause of action in federal courts. 3. Rule: Only way to modify constitution is by amendment, if none, then document stands as read. Framers knew could not see the future so provided for people, not the courts, to modify constitution from time to time. Dissent (Curtis) 4. Several states recognized former slaves and their progeny as citizens, and therefore the US. Citizens of states are entitled to privileges and immunities in reciprocity with other states. 5. This seems to be an issue of federalism. c. Reconstruction to the New Deal i. 13th Amendment: Abolished Slavery at the end of the civil war. 1. Purpose was to over rule Dread Scott. 2. Applies to public and private action. 3. Prohibits badges and incidents of slavery. ii. _ The Black Codes (State laws?) 1. Applied unequal penalties for blacks on offenses. 2. Specified offenses for blacks only. 3. Indentured servitude was allowed. iii. _ The Civil Rights Act of 1866 1. No discrimination in civil rights or immunities among the inhabitants of any state of the US on account of race, color or previous condition of slavery or involuntary servitude. 2. Everyone has same rights to make and enforce contracts. iv. _ 14th Amendment (1868) 1. Only Applies to State Action. a. No state shall abridge the privileges or immunities of US citizens.1 b. Can‟t Deprive persons of life, liberty or property without Due Process. c. Can‟t deny persons equal protection under the law. i. Including right to an impartial jury of peers (black). (Strauder) d. Congress can enforce by appropriate legislation. i. Scope limited to public action however. No right to limit private action. e. Did not confer political rights. 2. Changed the balance of power to the Federal Government from the states. 3. Strauder a. No racial discrimination on juries. b. However, can have reasonable regulations about who qualifies to be a juror, such as land owner or literacy, which is practically discriminatory against recently de-slaved blacks. v. Civil Rights Act of 1875 1. All persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations advantages, facilities, and privileges of inns, public conveyances on land or water, theatres and other places of public amusement.2 2. Plessy v. Ferguson (1896) a. Rule: Separate but Equal was a rx exercise of the state‟s police power based on custom, usage and traditions in the state. i. Police Power = power of a state to regulate private conduct for the health, safety and welfare of the general public. vi. Bailey v. Alabama (1911) 1. Laws that required performance when monetary consideration given creates an involuntary servitude and are void under the 13th amendment. th vii. 15 Amendment 1. No Discrimination in politics or voting. viii. Brown v. Board of Education 1. No separate but equal? 1 What is the difference between the 14th‟s privileges OR immunities clause and the 4th‟s privileges AND immunities clause. 2 Why does Plessy not violate the Civil Rights Act of 1875? d (XVIII) _ FREEDOM OF RELIGION (XIX) _ IMPLIED FUNDAMENTAL RIGHTS d. a. _ DUE PROCESS i. 14th Amendment (1868) 1. Only Applies to State Action: 2. No state shall abridge the PRIVILEGES or IMMUNITIES of US citizens.3 3. States cannot deprive a PERSON of life, liberty or property without DUE PROCESS. a. Who is a Person? i. US Citizen home or abroad 1. Dread Scott shows that Persons was not necessarily intended to mean black people. So who else was not intended in Perons? ii. Non-US citizen domestic (under 5th Amend). 1. Exception for Criminals. a. Have to determine if terrorism is a crime or a war (Geneva convention). iii. Non-US Citizen Abroad – No. Only Geneva convention. iv. Corporation = Person b. Due Process = Procedural Due Process + Substantive Due Process i. Procedural Due Process = Right to a hearing before an impartial decision maker. 1. Impartial Decision Maker = ?? ii. Substantive Due Process 1. Justices perception of life liberty and property 2. Liberty = a. Freedom of Contract (Lockner Baker Case) b. Freedom of Choice (aka right to Privacy) (Griswald, Roe, Lawrence) i. Freedom to have an abortion 3 What is the difference between the 14th‟s privileges OR immunities clause and the 4th‟s privileges AND immunities clause. ii. Freedom to engage in homosexual sodomy iii. Standard of Due Process Review: 1. Economic Law: Rational Basis Test (carolene products) 2. Non-Economic:?? iv. EXCEPTION: Police Powers to ensure health, safety and welfare of the community trump Due Process when exercised reasonably. (Hence eminent Domain power.) 1. Only those means appropriate to accomplish the goals can be used. 2. WHAT LEVEL OF SCRUTINY?? 4. Can‟t deny persons equal protection under the law. a. For governmental action to be invalid, it must be an intentional discrimination, not just discriminatory impact. b. Standards of Review: i. Strict Scrutiny – Race ii. Intermediate – Gender iii. Rational Basis – Property / Contract / Commerce c. Including right to an impartial jury of peers (black). (Strauder) 5. Congress can enforce by appropriate legislation. a. Scope limited to public action however. No right to limit private action. 6. Did not confer political rights. ii. Cases: 1. 2. 3. 4. 5. 6. 7. Lockner Griswald Roe Lawrence Hamdi Rasool Hamdan b. _ ABORTION i. _ Stenberg v. Carhart – Bans on Abortion must only be post viability. 1. Facts: State of Nebraska banned partial birth abortion. 2. Issue: Did Nebraska partial birth abortion ban violate the constitutional? 3. Analysis: A woman has a right pre-viability to have an abortion. Nebraska law didn‟t include a definition of viability, so the law could be infringing on that implied right, therefore strike down. 4. Hold: 8 Concurring Opinions. 5. Meaning: Supreme Court ignored long held procedural practices: a. First question goes to State Supreme Court b. State Courts have definitive interpretation on state law. c. Avoid Constitutional Issues c. _ SEXUALITY AND SEXUAL ORIENTATION d. FREEDOM OF LABOR and CONTRACT i. Every human has a natural right to pursue his trade and reap the fruits of his labor. 1. Slaughter-House Cases (1873) a. Butchers required to work in the only licensed slaughterhouse. Butchers contended that had a due process property right to practice their jobs where wanted to. b. Rule: Private interests must be made subservient to the general interest of the public, especially in interests of health and harm to others property. 2. Lochner v. NY(1905) a. Baker convicted of working an employee more than 10 hrs a day in violation of wage & hour law. b. Rx exercises of state police power do not offend due process under the 14th amend so long as: i. The law is a rx means to the end of public health. 3. Blaisdell (1932) a. Rule: 14th Amend provides that no state shall pass a law abridging due process. Due Process = Life, Liberty and Property. Property = Contract. However, Police Powers to ensure health, safety and welfare of the community trump Property Rights when exercised reasonably. (Hence eminent Domain power.) b. Only those means appropriate to accomplish the goals can be used. 4 4. Carolene Products (1938) a. Established economic due process = b. In cases of constitutionality of commercial transactions rational basis test will apply. 4 Is this case one of strict scrutiny. c. Rational Basis = If congress could have had a rational basis that there was, is or will be a substantial effect on interstate commerce